ASIC v Rich [2006] NSWSC 826

ASIC v Rich [2006] NSWSC 826

ASIC is permitted to adduce as evidence in reply only those parts of the identified affidavits that respond to new matters raised unexpectedly or not reasonably foreseeable in the defendants' evidence; evidence that could have been adduced in chief or simply supplements ASIC's case is not permitted as it would amount to impermissible case splitting. The court's discretion is exercised in light of fairness, the nature of the proceeding, and the timely conduct of litigation.

Parties
Plaintiff: Australian Securities and Investments Commission; Defendant 1: John David Rich; Defendant 4: Mark Alan Silbermann
Jurisdiction
Australia
Judgment Date
21 August 2006
Procedural Posture
Civil Penalty Proceeding / Interlocutory Application Regarding Admission of Evidence in Reply
Outcome
Application granted in part: some reply evidence permitted, other parts refused as impermissible splitting of the case.
Legal Topics
Evidence in Reply, Case Splitting, Civil Penalty Proceedings, Privilege Against Self Incrimination, Order of Evidence
Evidence Corporations Law Civil Procedure Evidence in Reply Case Splitting Civil Penalty Proceedings Privilege Against Self Incrimination Order of Evidence

Case Brief

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Parties

Australian Securities and Investments Commission

Plaintiff

John David Rich

Defendant 1

Mark Alan Silbermann

Defendant 4

Procedural Posture

Civil Penalty Proceeding / Interlocutory Application Regarding Admission of Evidence in Reply

Legal Issues

  1. 1 Whether ASIC should be permitted to adduce evidence in reply after defendants closed their case
  2. 2 Whether proposed evidence in reply constitutes impermissible splitting of ASIC's case
  3. 3 Appropriate standard for admitting evidence in reply in civil penalty proceedings

Ratio Decidendi

ASIC is permitted to adduce as evidence in reply only those parts of the identified affidavits that respond to new matters raised unexpectedly or not reasonably foreseeable in the defendants' evidence; evidence that could have been adduced in chief or simply supplements ASIC's case is not permitted as it would amount to impermissible case splitting. The court's discretion is exercised in light of fairness, the nature of the proceeding, and the timely conduct of litigation.

Court Disposition

Application granted in part: some reply evidence permitted, other parts refused as impermissible splitting of the case.

Orders

  • ASIC permitted to read only those paragraphs of the identified affidavits strictly in reply to matters not reasonably foreseeable in their case in chief; remainder of affidavits not admitted as evidence in reply.